Climate Change

Legislative Initiatives to Reduce Stormwater Runoff, Part 2

March 16, 2011 13:48
Yesterday we discussed the proposed legislative response in New Jersey to the problems of flooding and stormwater management.  Some have speculated that increasing frequency and severity of flooding and stormwater is a by-product of climate change, and certainly these events are consistent with climate change.  Other studies have pointed to the decreasing amount of pervious cover in urban areas as increasing stormwater runoff.  Regardless of the causes, the problem is quite real.  Although the legislation is pending in New Jersey the problems are not unique to this State nor to the United States.  This post will examine another of the five companion bills.  This proposed law would have the greatest impact upon the design and development of private projects.  A3680: Requires any projects subject to municipal land use approvals to incorporate green or blue roofs. In New Jersey this bill would have the most wide-reaching implications for private development.  The bill would require that all new construction projects for which approvals are required under New Jersey’s Municipal Land Use Law, which would include most new construction projects in the State, particularly in developed urban areas, incorporate Green or Blue roofs, unless the applicant can demonstrate that it would not be feasible to build with such a roof. The bill further requires the Department of Environmental Protection (“DEP”) to develop, within one year, rules and regulations concerning incorporation of Green or Blue roofs to limit the release of stormwater runoff.  One interesting, but un-answered question, revolves around the statutory mandate that requires such roofs unless an applicant demonstrates to the DEP that such roofs are not feasible for a particular project.  This may be the result of the legislative sponsors failing to recognize that most municipal land use applications are approved at the local level, and not by DEP even though some projects require DEP approvals in order to receive municipal approvals.  Perhaps the statute should be revised to require an applicant to demonstrate to the body that is reviewing a land use application why it would not be feasible to build such a roof in accordance with the criteria established by DEP.The bill provides an incentive for those projects that require some form of DEP approval because it requires the DEP give priority consideration to any permit or authorization that it must issue for a project that incorporates Green or Blue roofs.  This bill seeks to achieve compliance with the desired goal by using both the “carrot” and the “stick”.  The motivation for this series of companion bills is certainly meritorious.  One of the sponsors of the bills, assemblyman John McKeon, set forth the rationale: “We know that there’s a problem with water discharge and an overburdened sewer system.  So green roofs and blue roofs are a way to systemically discharge water so that it goes out in a regimented manner and doesn’t end in the overflow that ends in all the problems that we have with pollution”.Tomorrow, more about positive financial incentives for Green or Blue roofs.

Climate Change | Flood Insurance | Legislation

Legislative Initiatives to Reduce Stormwater Runoff, Part 1

March 15, 2011 05:53
Yesterday I had a negative experience that caused me to think about some of the practical consequences of climate change.  Instead of taking my usual route home, I and many others were forced to use an alternate route because a major state highway was closed due to flooding from an adjacent river.  This condition will exist for several days, and its occurrence has been increasing in frequency and severity within the last ten years.  Worse than that inconvenience to me and other drivers is the flooding of homes and business that occurs with greater regularity in my area of New Jersey including the communities of Wayne, Little Falls, and Fairfield.Is anyone thinking about potential legislative solutions to our storm water problems?  The answer in New Jersey is, “yes Virginia”.  Three primary sponsors in the New Jersey Assembly have introduced five companion bills that are aimed at improving our storm water management and greening our built environment.  We will examine each of these bills in turn over the next few days.  They could provide guidance to other States considering how to respond to this increasing problem.   All of the proposed bills provide various incentives for Green roofs or Blue roofs.  A “Green roof” is one that includes, among other things, a growth medium and a vegetation layer of drought resistant and hardy plant species, designed to improve stormwater management.  A “Blue roof” is constructed with mechanical controls, such as gravel beds, perforated pipes, or rooftop detention systems, that drain stormwater to improve stormwater management. A3679:  Requires incorporation of Green or Blue roofs on new State buildingsBill A3679 would require any new building, facility or structure having at least 15,000 square feet in total floor area that is constructed for the sole use of a State governmental entity to include a functioning Green roof or Blue roof.The bill directs the Division of Property Management and Construction to consult with the Department of Environmental Protection to ensure that designs for such roofs comply with this Act.  As currently drafted the law would be effective one year after passage, allowing appropriate lead time for all concerned parties to comply with this fundamental design shift.A3681: Requires Green or Blue roofs on new buildings using State, EDA, or Schools Development Authority FundsThis bill is nearly identical to A3679 in terms of substantive requirements.  However, it expands the scope of the legislation to include any new construction projects that are funded by the State, or that are funded by the NJ Economic Development Authority, or any schools that are built through the Schools Development Authority.  The number of such structures that are built each year is almost always greater than the number of structures that are built for the exclusive use of State government.  As the bill states, in most instances projects that use Green or Blue roofs will also achieve operational cost savings from increased energy efficiency.  The question that some might raise in this context, or with respect to other green building mandates, is whether the costs of construction to comply with the heightened standards will increase, thereby decreasing the number of projects can be built.  That is a topic of much debate that is beyond the scope of this series.  Tomorrow, more about the wide reach of this body of legislation.

Climate Change | Flood Insurance | Legislation

ClimateLawyers Blog Nominated for Top 50

February 8, 2011 12:44
by J. Wylie Donald
There was a lot of hype in the papers today about some contest in Dallas with people running around, bumping into each other, dropping balls and otherwise exhaling a lot of greenhouse gases.  We contemplated a discussion of the Superbowl but knew you would be more interested in some shameless marketing.  So here's where we are:  LexisNexis has nominated the blog for the first ever LexisNexis “2011 Top 50 Environmental Law & Climate Change Blogs.”  In their words, “For the first time, the LexisNexis Environmental Law & Climate Change Community is honoring a select group of blogs that set the online standard for our practice area,” said Karen C. Yotis, ELCCC Community Manager, in an emailed statement to us. As some of you may know, we initiated the blog, ClimateLawyers.com, in 2008, in the vanguard of those addressing climate issues in the legal profession.  We have focused on not just being a news blog, but instead try to incorporate analysis in everything we post.  We like to think that we are succeeding as our readership is consistently growing.  The blog is dedicated to the discussion of legal, public policy, and business risk questions presented by climate change and renewable energy initiatives. LexisNexis has created an online community page to allow members to provide commentary on the list.   To show your support of ClimateLawyers.com, please click here.   The deadline for comments is February 14.And since we promise analysis, here is some. In climate change circles, there has been much written about the conclusions that can be drawn from the hard data.  The scientific community is agreed that climate change is occurring.  It is also agreed that atmospheric carbon dioxide levels are the highest they have been in thousands and thousands of years.  Where the controversy has been is whether one can conclude that anthropogenic carbon dioxide is the cause of climate change.  Similarly here.  The hard facts are the writings in the various blogs under consideration.  There is no dispute that we and our peers labor to churn out our best thoughts.  The question, though, is what are those thoughts' significance?  And that in turn depends on who is reading, which in turn may depend on whether he or she has found what was in the blog worth reading before.  So there is a large amount of serendipity in this blog competition and the ultimate conclusion may depend on exactly what question the judges ask.  Be that as it may, if you have positive comments about our writing, we would be grateful if you would let the folks at LexisNexis know.  Thanks.

Climate Change | Greenhouse Gases | Year in Review

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Supreme Court Denies Petition for Mandamus in Comer

January 10, 2011 09:59
by J. Wylie Donald
It does not get much more anti-climactic.  The Supreme Court today rejected the Comer v. Murphy Oil plaintiffs' request for a writ of mandamus.  It took only a short seven words to relegate the petition (as well as others) to the dustbin:  "The petitions for writs of mandamus are denied."  So ends a saga that was initiated with Hurrican Katrina, expressed in a complaint, dismissed under the political question doctrine, reversed by the Fifth Circuit, accepted for en banc review, reinstated as dismissed when the Fifth Circuit's quorum dissolved, and ultimately ended up on the Supreme Court's docket.  Then it ended, not with a bang, nor even a whimper.     The questions as framed by the plaintiffs were thoughtful:     Where the litigants have perfected a right to an appeal under 28 U.S.C. § 1291, does the Circuit Court have a duty to render a decision?     When an en banc court loses its quorum after granting rehearing but before hearing argument en banc, can the remaining judges dismiss an appeal of right without a decision on the merits?     When an en banc court loses its quorum before deciding an appeal on rehearing en banc, does the    original panel maintain control over the case? I will be frank, I don't have a clue about the answers to these meaty questions (and I suspect there will be a few law review notes and articles attempting to intuit one).  But I do have some thoughts on the significance of this ruling with respect to climate change litigation. First, it was an expensive defeat for the plaintiffs' bar.  Gerald Maples, lead counsel for the plaintiffs, estimated he had spent $3 million on the case even before the en banc and Supreme Court appeals.  (Maples Australian Interview).  I assume that even for the plaintiffs' bar, $3 million is not chump change.  While tobacco litigation required numerous attempts before plaintiffs finally beat Big Tobacco, tobacco plaintiffs never had to contend with problems of causation anywhere near the complexity faced by climate change plaintiffs.  As stated by the district court in Comer:     I foresee daunting evidentiary problems for anyone who undertakes to prove, by a preponderance of the evidence, the degree to which global warming is caused by the emission of greenhouse gasses; the degree to which the actions of any individual oil company, any individual chemical company, or the collective action of these corporations contribute, through the emission of greenhouse gasses, to global warming; and the extent to which the emission of greenhouse gasses by these defendants, through the phenomenon of global warming, intensified or otherwise affected the weather system that produced Hurricane Katrina.  Comer v. Nationwide Mut. Ins. Co., Civ. A. No. 1:05 CV 436-LTD-RHW, 2006 WL 1066645, *4 (S.D. Miss. Feb. 23, 2006). Conversely, however, plaintiffs' counsel may be encouraged notwithstanding the loss in Comer.  There are presently two appellate decisions on the merits on public nuisance climate change cases, Connecticut v. American Electric Power and Comer; both come out for the plaintiffs.  As we wrote in December, with the retirements of Justices Stevens and Souter, and the recusal of Justice Sotomayor, a 4-4 stalemate at the Supreme Court in Connecticut is a distinct possibility.  That, coupled with the panel decision in Comer, could send a message that climate change liability cases are worth bringing.  In that case, we will certainly see more such cases. Second, the Tennessee Valley Authority is batting 1.000 in climate change appeals.  TVA filed papers supporting the petition for certiorari in Connecticut.  The Court accepted the petition.  And TVA opposed the request for mandamus in Comer, which was denied.  The same of course could be said of several other utlities in both litigations.  The difference being that when TVA speaks on the political question doctrine, it is the government itself asserting that it wishes to address climate change through the political process rather than through the courts.  In the appeal of Native Village of Kivalina v. ExxonMobil, TVA did not join as an amicus.  Instead, the defendants drew the support of two Congressmen:  Lamar Smith, the Ranking Republican Member of the House Judiciary Committee, and James Sensenbrenner, Jr., the Ranking Republican of the Select Committee on Energy Independence and Global Warming.  (Kivalina Amicus Brief) Let us hope that the 50 years of congressional experience between them gives them some sway with the Ninth Circuit. Last, can we read the tea leaves in Connecticut through the Comer lens?  The blogosphere is particularly harsh on the Fifth Circuit for its failure to solve its quorum problem.  Suggested solutions include bringing in a district court judge or a jurist from another circuit.  Instead, based on procedure the court nullified the case's only appellate merits ruling.  That seems a particularly harsh result on a topic of such significance, but it is only so if the Court affirms the Second Circuit and permits the appellate decision in Connecticut to survive. Is the rejection of Comer then, a case of precognition applicable to Connecticut?  By June we will have found out.

Climate Change | Climate Change Litigation | Supreme Court

A Welcome Holiday Present: One Year Extension of the Solar Energy Tax Grant in Lieu of Credit

December 23, 2010 07:39
The renewable energy industry got a nice holiday present this year. On December 17, 2010, President Obama signed into law H.R. 4853, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the "Tax Relief Act"). Included among the panoply of tax cuts is a tax grant extension cheered by the renewable energy industry. Section 707 of the Tax Relief Act extends by one year the deadline for commencing construction of specified energy property, such as solar facilities, to be eligible to receive a grant of 30% of the cost of the property from the U.S. Treasury under Section 1603 of the American Recovery and Reinvestment Act of 2009. The property will be eligible for the grant if it is placed in service during 2009, 2010, or 2011, or if it is placed in service after 2011 and before the energy credit termination date (January 1, 2017, for solar facilities) if construction began before January 1, 2012. The extension of the tax grant in lieu of credit will allow those interested in developing solar facilities to continue to take advantage of the grant for another full year rather than work to beat the clock to demonstrate compliance by the end of 2010. Projects now under way that are expected to be placed in service in 2011 no longer have to meet Treasury's safe harbor for commencement of construction (demonstrating 5% of construction) by December 31, 2010. The safe harbor and its requirements, however, will be relevant in 2011 for projects expected to be placed in service after 2011. As participants in solar transactions plan their activities for 2011, they should be mindful of the steps that need to be taken by December 31, 2011, to document and maintain eligibility for any projects expected to be placed in service between 2012 and 2017, by either commencing construction or meeting the 5% safe harbor. Due to the sluggish credit markets and economy in 2009, the grant in lieu of credit program was not as great a stimulus to the development of renewable energy projects as some had initially expected. This grant extension brings welcome news to the solar industry and to any large energy user that may want to reduce its energy costs by developing and installing a solar facility. It evidences Congress' continued commitment to the development of alternative energy projects and should result in the development of many more viable projects and the creation of jobs related to the construction and installation of solar energy facilities.  

Climate Change | Legislation | Renewable Energy | Solar Energy

Climate Change and the Supreme Court Part II: Certiorari Granted in Connecticut v. American Electric Power

December 6, 2010 07:35
by J. Wylie Donald
It doesn't take much insight to conclude that today's granting by the Supreme Court of the petition for certiorari in Connecticut v. American Electric Power could be the start of a whole new era in climate change liability lawsuits. If the Supreme Court comes down on the side of the plaintiff States, it may become open season on utilities, coal and petrochemical companies, automobile manufacturers, and anyone else a litigation-minded plaintiff wishes to mulct in damages for carbon dioxide emissions and climate change. Potential defendants need to take steps now to identify their insurance coverage and be prepared to give notice. The Supreme Court last looked at climate change in 2007 when it concluded in Massachusetts v. EPA, 549 U.S. 497 (2007), by a 5-4 decision, that the Clean Air Act required the USEPA to consider whether carbon dioxide and other greenhouse gases were air pollutants within the meaning of the Act. The issue this time is whether the courts should be imposing judicial remedies for injuries allegedly arising from the emission of carbon dioxide, an alleged nuisance. Few reading this blog will need an introduction to Connecticut v. American Electric Power. I won't go over it other than to remind readers that it was filed in New York federal court in 2004 by several states against a collection of carbon dioxide-emitting utilities and was then consolidated with similar cases filed by public interest groups. The basic allegation was that the utilities' carbon dioxide emissions constituted a public nuisance and the plaintiffs sought injunctive relief compelling the utilities to reduce their emissions. On motion, the trial court dismissed the case concluding that the political question doctrine applied because only the political branches (i.e., the legislative and executive arms of the government) could appropriately balance the array of environmental, economic and other issues presented. An appeal followed to the Second Circuit, which reversed and held that the political question doctrine does not preclude federal common law nuisance claims. Following denial of a petition for en banc review, the petition for certiorari was filed on August 2, followed shortly by an amicus curiae brief from the Obama administration. The federal government asserted that the Second Circuit's decision should be vacated because the government was developing regulations and that the courts should stay out. Of course Connecticut v. American Electric Power is not alone. Private and public plaintiffs have brought suit for alleged climate change losses arising in Mississippi, California and Alaska. Although all three cases have been dismissed, the appeal of one was withdrawn, the appellate panel in the second reversed the dismissal, but which was then vacated when the en banc court accepted review and then could not muster a quorum, and the third is pending before the Ninth Circuit. See Cal. v. Gen. Motors Corp., No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007), appeal dismissed, No. 07-16908 (9th Cir. June 24, 2009); Comer v. Murphy Oil Co., 2007 WL 6942285 (S.D. Miss. Aug. 30, 2007), rev'd, 585 F.3d 855 (5th Cir. 2009), reh'g granted, 598 F.3d 208 (5th Cir.), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010); Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D. Cal. 2009), appeal pending, No. 09-17490 (9th Cir. Nov. 5, 2009). Quite clearly, the last chapter on these types of lawsuits has not been written. Reading the tea leaves on Connecticut v. American Electric Power will be difficult. To grant a petition for certiorari, only four justices need to approve. With the retirement of Justices Stevens (author of Massachusetts v. EPA) and Souter (who joined in the opinion), and the recusal from Connecticut of Justice Sotomayor (who heard argument at the Second Circuit but did not sign the opinion), a 4-4 decision in Connecticut is certainly possible. That would leave the Second Circuit's decision intact without a Supreme Court decision (which might bode well for the appeal of Kivalina before the Ninth Circuit). IMPLICATIONS FOR A DECISION Emitters of carbon dioxide are hoping for a clean decision that puts the climate change liability genie back in the bottle and lays the theory of federal common law nuisance in its grave. But what if that does not occur? There is certainly a fair chance that the justices either affirm the theory, or, 4-4, do not reject it. In that case, plaintiffs' lawyers are very likely to be emboldened and bring other suits. Some target industries have already been identified. When the results of USEPA's greenhouse gas reporting rule are collated, other industries may find themselves in the crosshairs. The time to identify insurance coverage is not when half a dozen claims have been filed in jurisdictions across the nation demanding an answer within 30 days. Climate change defendants and potential defendants should take steps now to prepare for future claims, most notably because of the risk they may lose insurance coverage for these claims if they are not reported timely. Many will rely on notice to their current insurer and that is a good strategy, so far as it goes and only if that carrier agrees to coverage. But besides one's current policy, one should also be considering prior "occurrence-based" policies, which could be triggered based on allegations of injury-causing events occurring over time. It does not require much imagination to analogize the time periods over which, for example, glaciers have melted, snowpack has become depleted, erosion has increased, and water supplies have been drawn down to other drawn-out injuries that established the "continuous trigger" rule that attached multiple policies. Some states have a bright line rule for notice. If it is not given promptly, dismissal based on late notice is a likely result. Other states are more lenient and require prejudice to the insurer. New York until recently was a no-prejudice-to-the-insurer state. But the law changed in 2009 to require the insurer to show prejudice (or the insured to show no prejudice) - but it was not retroactive. Accordingly, insureds with policies subject to New York law (which is often the case due to a choice of law provision in the policy) prior to 2009 still need to give notice promptly. Even in those states that require prejudice to be shown, one cannot know how the case law on prejudice will evolve in the context of climate change; hence prompt notice is a good idea in other states as well. Notice here is not as easy as it may sound. Unlike Superfund cases where the (alleged) responsible entity is identified by the claimant and therefore can be identified to the insurance company, carbon dioxide emission liability can fall to any fossil-fuel fired plant owned by the corporate entity, including potentially those operated by subsidiaries. Accordingly, those subsidiaries' policies may need to be tracked down and placed on notice as well. Taking liberties with Ben Franklin's adage, an ounce of protection is worth a pound of cure. Should climate change claims get the green light from the Supreme Court, policyholders would be wise to have located all of their protection ahead of time.

Carbon Dioxide | Carbon Emissions | Climate Change | Climate Change Litigation | Insurance | Supreme Court | Utilities

Looking Forward and Looking Back - Some Climate Change Response Perspectives and Predictions

December 2, 2010 07:44
by J. Wylie Donald
Another year done, another time to look back and to look forward. In the climate change space, the increasing tempo of regulation was halted, but that does not mean that there were not significant events. We catalog a few with accompanying predictions of the future:Without a doubt the big legal action this year will be the United States Supreme Court's decision in Connecticut v. American Electric Power, where States and public interest organizations seek to vindicate their ability to sue on a "carbon dioxide as public nuisance" theory. One should expect the Ninth Circuit to hold off an any decision in Kivalina v. ExxonMobil until after the Supremes render their decision. And climate change plaintiffs will husband their resources until the lay of the legal landscape is clear before filing any new suits. Our crystal ball, however, also hints that clarity may not be forthcoming. Justice Sotomayor has recused herself - there may be effectively no decision if the Court comes out 4-4. Hand-in-hand with climate change liability lawsuits goes climate change liability insurance coverage. That too is being litigated at an ultimate appellate venue. In Steadfast Insurance Co. v. The AES Corp., the Virginia Supreme Court will consider whether for the purposes of the duty to defend, an occurrence is alleged in Kivalina. Although Virginia is not the most popular of coverage litigation venues, that Steadfast is the first climate change coverage case ensures that the decision will be significant.While these are heady times for courts and litigators, those ready for the legislative "fix" for climate change will not find succor in 2011. Cap-and-trade advocates became quieter and quieter in the days leading up to the November 2010 mid-term elections. We win no points for our prescience when we predict that there will be no new federal legislation regulating carbon dioxide emissions in the coming year. Quieter even than domestic cap-and-trade supporters are those in favor of some international regime. COP 16 in Cancun achieved very little. It established a $100 billion Green Climate Fund, without any provisions to fund it. It did not extend the Kyoto Protocol, which expires in 2012. And China and the United States (the two largest greenhouse gas emitters) are still not part of any global climate change plan. COP 17 takes place in Durban, South Africa at the end of next year. With an American presidential race beginning, it is hard to imagine the Administration will butt heads with its Republican adversaries on anything contentious or innovative proposed at Durban. Even if legislation is going nowhere, that does not mean the administrative agencies will be quiet. The FTC Green Guides have proposed revisions to address carbon neutrality and renewable energy claims. Expect the proposals to be acted on in 2011. The SEC's guidance on climate change disclosure surfaced in February 2010. The guidance specifically requires analysis of domestic and international regulation. In light of the shift in the climate-change-regulation pendulum, it will be interesting to see if any reporting company states that it expects less restrictions, rather than more restrictions. And of course USEPA's greenhouse gas reporting rules required the first set of data to be turned in at the end of 2010, which undoubtedly will initiate further regulatory rules. Private parties will go where the money is, which will continue to be in heavily subsidized renewable programs. Will the Republican Congress recognize the market dislocations engendered by these subsidies and cut them? Or will different influences like jobs or constituents continue to make their presence felt? If the December enactment of the Tax Relief Act (which provided an extension of the 30% tax grant for renewable projects) is any guide, if a project can be supported with a tax subsidy, rather than a government payment, it will continue. And what can we say about the weather? 2010 was an above average hurricane year, but fortunately for the United States, damage was minimal. The hurricane experts at Colorado State University predict an equally busy year for 2011. Pay up those premiums. Best for the New Year!

Insurance | Climate Change | Supreme Court | Legislation | Carbon Emissions

CANCUN AND COP 16 - TIME FOR A NEW APPROACH?

November 30, 2010 07:34
by J. Wylie Donald
There are a variety of metrics one could use to test the world's interest in the discussions being held by climate change policymakers gathering in Cancun this week. I will use a very personal one. As the Conference of the Parties came together in Copenhagen last year (COP 15), I was often on the phone with news organizations seeking perspective on the Kyoto Protocol, clean development mechanisms, carbon taxes, cap-and-trade and anything else that might be relevant to discussions of climate change and the world's response to it. This year in the run up to COP 16 not a single journalist has called, or even emailed. Taking a less parochial view, if you go to the United Nations Framework Convention on Climate Change "Essential Background" webpage, you will learn right in the middle of the page that Somalia is the 193rd party to the Kyoto Protocol, a fact that I feel confident in concluding will have absolutely no impact on any climate change response anywhere (even in Somalia), but which the UNFCCC functionaries conclude is essential background.So I join in the cynics that conclude little will come out of Cancun. Some are calling for a completely new attitude to climate talks. Yesterday's Wall Street Journal for example stakes out four new positions in an article styled: How to Change the Global Energy Conversation. Briefly, the authors posit that the approach that has been tried for two decades, and failed for two decades, has it all wrong. Rather than trying to raise the cost of fossil fuels, governments would be focusing on lowering the cost of renewable energy by spurring innovation. They point out that the U.S. military's support of chip technology innovation in the 50s drove those prices down 50-fold over the course of a decade. While those clean technologies are developing, greenhouse gases should be reined in through the easy fixes, such as replacing old inefficient diesel generators throughout the less developed world and focusing on capturing methane emissions from landfills. And while we are involved in less-developed countries, we should jettison the idea that there needs to be a massive transfer of wealth from rich states to poor states to help stave off the negative effects of climate change. Instead, let's recognize that a flood or earthquake or hurricane is devastating regardless of the cause and focus on building more disaster resilient infrastructure. More importantly, wealthier societies are better able to handle disasters and thus the ultimate goal must be to increase the wealth of poorer countries and to do that poorer countries need cheap energy, which brings us back to the innovation goal. Last, the authors reject universal consensus and point out that 80% of all emissions, 85% of GDP, 80% of world trade and 2/3 of the world's population are in the G-20 nations. Those nations should get together and pick their strategy.I have written before (and no doubt will write again) that what business needs is guidance. Whether it is a conference of 193 parties, or a group of 20, there needs to be a roadmap on where climate change policy is going, so business can plan. I have not seen the analysis that calculates the economic loss caused by climate change policy paralysis. Undoubtedly it is huge. What national policymakers need to figure out at and after Cancun is whether the Kyoto process can work. If not, it is time to do something else.

Carbon Dioxide | Carbon Emissions | Climate Change

FEMA Flood Maps are All Wet - They Don't Consider Climate Change

November 2, 2010 16:52
by J. Wylie Donald
Last week brought another edition of the Flood Insurance Rate Maps. FEMA announced on October 29 that it was releasing new preliminary flood maps for Montgomery County, Maryland. Click here.  It has been 14 years since the last flood plain map was created and the good citizens have seen substantial changes in that period. Montgomery County's planning arm sets forth in its 2007-2009 report that the population has boomed over the last thirty years with an anticipated increase of 14% this decade, the fastest growing in Maryland. Click here. The effect of all this growth is telling. "Several factors—including sustained job and population expansion, declining supplies of greenfield space, and land use policies favoring in-fill and transit-oriented development—have reinforced this pattern of concentrated development in recent years. Growth, density and mixed-used development are transforming former commuter suburbs into increasingly more urban-like environments." So with all that change, re-doing the flood plain maps is necessary, and overdue. Unfortunately, these maps are outdated even as they are issued. This is not simply because additional development affects them. It is because they do not consider climate change. This bears repeating. The FEMA flood maps do not consider climate change. And it is not just some blogger saying it. The Delaware River Basin Commission wrote in 2009: "Future development and the impacts of climate change are not taken into account during the development of FEMA flood hazard area mapping." Click here. Why is this significant? One of the fundamental predictions of climate scientists is that climate change is going to deliver more extreme weather. In the Northeast, for example, there will be more frequent storms and more severe storms. It should be obvious that these will increase the frequency of flooding and the 100-year flood will now become the 50-year flood or the 25-year flood. As most know, the FEMA flood map shows the 100-year flood plain. Inside the flood plain, certain construction requirements are imposed, and flood insurance is required of all who would be involved in federal programs (such as loan guarantees from Fannie Mae or Freddie Mac). Outside the 100-year floodplain, neither condition applies. Accordingly, if the 100-year floodplain is inaccurately set forth, numerous properties just outside the erroneous line are more likely to be subjected to a flood than the occupant or owner anticipates, and are more likely not to have flood insurance. If this sounds like a recipe for disaster, it is. The spring floods in Nashville caused over $1 billion in damage. FEMA reported only 100 National Flood Insurance policies in the the entirety of Davidson County (where Nashville is located).1  Why so few? Because no one believed they were in the flood plain. This mentality is only going to get worse, particularly if FEMA publishes flood maps without pointing out that it is ignoring an undeniable substantial factor: climate change.       1 Jeff Casale, Significant losses expected after floods soak Nashville, Business Insurance (May 10, 2010).

Climate Change | Flood Insurance | Weather

Revisions to the Green Guides: Part III - Insurance Coverage for the Claim

October 24, 2010 16:10
by J. Wylie Donald
If you have been following along with the last two posts, you are now aware of the several ways one can trip up as one attempts to use "green" climate change attributes (specifically, claims regarding renewable energy, carbon offsets or carbon neutrality) to win customers or sell products. And the universe is bigger than simply climate change. The Green Guides promulgated by the Federal Trade Commission, address general environmental benefit claims; biodegrable, recyclable, compostable, refillable and recycled content claims; "ozone-friendly" claims; and claims about source reduction. See 16 C.F.R. § 260.7. There are numerous perils and you would like to think that a misstep in this area would not be without succor. And you would be right (in some circumstances). Included in the general liability policies with which we are all familiar, is coverage for Advertising Injury. As its name implies, it can be a source of coverage for a marketing misstep. Typical insuring language provides that the insurer "will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies." ISO CG 00 01 12 07. These policies often also require the insurer to defend the insured against claims asserting advertising injury.   Advertising injury coverage is not triggered by the commonly known "occurrence." Instead, the operative event is an "offense" committed by the insured. These offenses are specifically enumerated in the definition of "personal and advertising injury." Pertinent here is the following offense set forth in the definition: "oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services." It is easy to understand "oral or written publication," but is a misleading advertisement that does not even mention a competitor's name, a slander, a libel or a disparagement? In a case of first impression in California in 2007, a court of appeals panel found that it could be. Tosoh Set v. Hartford Fire Ins. Co., slip op. (Cal. Ct. App., April 30, 2007) Click here . The court found that the "duty to defend was triggered by an allegation that [the insured] falsely claimed it alone had developed the detailed specifications and tolerances required for certain replacement component parts used in semiconductor manufacturing equipment, a statement that disparaged its competitors' products and services by implying they were measurably inferior." It does not require much ingenuity to imagine a claim that a certain item "made with renewable energy" constitutes disparagement of other manufacturers' products that are not so made. Likewise, a claim that a service was carbon neutral, might disparage services that were not. So coverage seems possible.

Climate Change | Renewable Energy

McCARTER & ENGLISH CLIMATE CHANGE AND RENEWABLE ENERGY PRACTICE GROUP

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.

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